IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. HBC 39 of 2015

BETWEEN	: 	CHANDAR BHAN SINGH
	PLAINTIFF

	AND	:	CHINA RAILWAY FIRST GROUP(FIJI)   	COMPANY LIMITED
	DEFENDANT

Appearances	:		Samusamuvodre Sharma Law for the Plaintiff
MC Lawyers for the Defendant

Ruling	:		31 March 2017

RULING
Introduction
1.	The Applicant Company seeks the setting aside of the default judgment entered against it by the Plaintiff on 1 February 2016 and a stay of the Master’s decision on assessment of damages on 27 May 2016, to allow the Applicant to defend the action on merit.  The application is supported by an affidavit sworn by Lei Pei Jun, Deputy Manager of the Company. 

Background
2.	On 4 December 2015, the Plaintiff instituted these proceedings by writ and statement of claim for negligence and personal injuries, claiming general and special damages, interest, cost of the action, loss of FNPF and future earnings, any other relief which to the Court seemed just.  Alternatively, compensation under the Workmen’s Compensation Act. 

3.	The writ was served on the Defendant on 23 December 2015. For the failure of the Defendant to acknowledge service or file a statement of defence, the Plaintiff on 1 February 2016 entered default judgment against the Defendant for damages, interest and costs to be assessed.

4.	A summons for assessment of damages was promptly filed thereafter on 3 February 2016 and on 29 March 2016, the matter came before the Master for assessment of damages.  On 27 May 2016, the Master awarded special damages, general damages, costs and interest totaling $70,176.   The Order was sealed on the same day.  

5.	The Applicant’s summons to set aside the default judgment and stay the execution of the Master’s award of damages was filed on 13 July 2016 and is made pursuant to Order 13 Rule 10 and Order 19 Rule 9 of the High Court Rules 1988.

The law
6.	The law on setting aside in this jurisdiction is settled.  Where a default judgment has been entered regularly or in compliance with the Rules, the defendant is required to show an affidavit of merits in order to succeed in setting aside the default judgment. (Fiji Sugar Corporation Ltd. v Ismail [1988] FJCA 1; [1988] 34 FLR 75 (8 July 1988).

7.	Where the default judgment has been entered irregularly, the defendant is entitled to have it set aside as of right without condition.  (White v Weston [1968] 2 Q B 647; Anlaby v Praetorious(1888) 20 Q.B.D. 764 at page 769 per Fry L.J.; Fiji Development Bank v Lal HBC 273 of 2012 per Kumar J)

8.	The Court has no discretion to refuse to set aside an irregular judgment. (Anlaby v Praetorious (supra))

9.	Order 13 deals with the consequences of the failure to file a notice of intention to defend, which consequences are similar to those for the failure to file a defence under Order 19.  The failure to file such notice or a defence where the claim is for a liquidated sum only entitles the Plaintiff to, inter alia, enter final judgment against the Defendant for a sum not exceeding the amount claimed in the writ. (Order 13 Rule 1, Order 19 Rule 2). 

10.	In the case of a writ endorsed with a claim for unliquidated damages only, the failure to file a notice of intention to defend or a statement of defence allows the Plaintiff, after the prescribed time, to enter interlocutory judgment against the Defendant for damages to be assessed, and costs.  (Order 13 Rule 2, Order 19 Rule 3)

11.	The failure of a defendant to file a notice of intention to defend or a statement of defence in a writ endorsed with two or more of the claims mentioned in Order 13 rr 1-4, or Order 19 rr 2-5 entitles the Plaintiff, after the prescribed time, to enter judgment in any such claim as he would be entitled to under the Rules.

12.	Where the writ is endorsed with a claim not of the kind in Order 13 rr 1-4, the failure of a defendant to file a notice of intention to defend or statement of defence allows the Plaintiff to continue with the action as if the defendant had filed such notice, subsequent to the filing of an affidavit proving service of the writ on the said defendant.  

13.	On the other hand, a failure in such claims to file a defence within the period fixed by the Rules entitles the Plaintiff to apply to the Court for judgment.  
14.	Both Order 13 Rule 10 and Order 19 Rule 9 give the Court an unfettered discretionary power to set aside or vary any judgment entered on account of the failure of the defendant to file a notice of intention to defend, or a defence within the prescribed time.  

15.	In Evans v. Bartlam (1937) 2 All E.R. p. 646 at p.650, Lord Atkins stated that though the Rules do not state any conditions on the Court’s power to set aside, the courts have set out for themselves guidelines on how their discretion is to be exercised.  One of these is the requirement for an affidavit of merits where the judgment was obtained regularly.  An affidavit of merits means that the applicant must adduce evidence that he has a prima facie defence.  The Court also stated that there is no rule requiring the applicant to furnish a reasonable explanation for allowing judgment to go by default, though the reason was one of the matters the court would consider in the exercise of its discretion.  Lord Atkins then said of the rationale: 

[T]he principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.

16.	A draft defence is not necessary.  What is required, however, is an affidavit of merits. 

17.	An affidavit of merits means “an affidavit stating facts showing defence on the merits.” (Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998) per Tikaram P, Casey and Dillon JJA)

18.	The Supreme Court Practice 1997 Vol 1 at p. 160 states:

The foregoing general indications of the way in which the court exercises discretion are derived from the judgment of the Court of Appeal in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle [1986] 2 Lloyd’s Rep. 221 at 223, CA, where the earlier cases are summarised.  From that case the following propositions may be derived:

(a)	It is not sufficient to show a merely “arguable” defence that would justify leave to defend under O.14; it must both have “a real prospect of success” and “carry some degree of conviction”.  Thus the court must form a provisional view of the probable outcome of the action.  

(b)	If proceedings are deliberately ignored this conduct, although not amounting to an estoppel at law, must be considered “in justice” before exercising the court’s discretion to set aside. 

19.	The principles in Saudi Eaglewere cited by the Court of Appeal in Wearsmartin its consideration of the requirements of an affidavit of merits.  The Court stated:

Notwithstanding the Court of Appeal’s later decision in Allen v. Taylor [1992] P.I.O.R. 255 which purports to dilute the principles emerging from Saudi Eagle, we subscribe to the White Book’s preferred view that ‘unless potentially credible affidavit evidence demonstrates a real likelihood that a defendant will succeed in fact no “real prospect of success” is shown and relief should be refused.  

20.	In Suva City Council v Tabu [2004] FJCA 42; ABU0055.2003S (16 July 2004) the Court of Appeal per Eichelbaum, Penlington and Scott JJA, approved the test laid down in Wearsmart“in 1988 and which has stood since then.” 

Analysis

21.	The issues for the Court to decide are:

(i)	whether the Applicant has shown an affidavit of merits such as to warrant the setting aside of the default judgment and stay of the Master’s decision on assessment of damages.

22.	The authorities above are clear that the Court ought to be satisfied that the affidavit in support of the application to set aside states facts showing a defence on the merits. (Wearsmart, supra) I bear in mind that a merely arguable defence is not enough.  The defence must have “a real prospect of success” and “carry some degree of conviction.” (Alpine Bulk Transport Co. Inc.; Wearsmart, supra)

23.	The statement of claim pleads that the Plaintiff was directed by the Company to mix cement, gravel and sand.  While the Plaintiff was doing so, 3 – 4 bags of cement fell on his right lower limb, causing him to fall to the ground.  His right lower limb was “visibly deformed” and he suffered discomfort and pain.  

24.	The particulars of negligence in the claim are, inter alia: the failure of the Company to provide and maintain a proper system of work for the workmen to follow; failure to provide adequate supervision at all times; exposing the plaintiff to a risk of damage or injury which the Defendant knew or ought to have known of; instructing or allowing the plaintiff to lift the seven bags at a height, knowing it was exposing the plaintiff to work that was unsafe. 

25.	The Defendant’s affidavit deposes, in as far as a defence is concerned, that: the Plaintiff’s alleged pay and FNPF deduction was not correct; for every project, the Company issues safety gear to its workers to ensure their safety; the company has a system in place where it holds a safety meeting called a “toolbox meeting” to discuss safety risks and associated hazards of the job, to advise workers on how to carry out each job, as well as the safety control measures required of them; that the Company also employs safety officers for its projects, to ensure the safety of its workers, and; that with the measures and procedures the Company had in place, the Plaintiff should have acted with due care and concentration in the tasks he had undertaken; that in respect of the transportation costs claimed by the Plaintiff under special damages, the Company had provided transport for the Plaintiff to the hospital; that the Company had also offered to pay for the Plaintiff’s medical report but the Plaintiff refused; that the Plaintiff had continued to receive wages from the Company up until 11 September 2015, such that the loss of future earnings should have been calculated from that date, until the completion of the project on 12 January 2016; the Plaintiff could have been compensated under the Workmen’s Compensation Act (Cap 94) of which payment has been made by the Company’s insurance agent, to the Ministry; the Company has made full payment of the compensation amount given by the Ministry; that in light of the facts deposed, the Applicant has a meritorious defence and would be greatly prejudiced if the judgment entered by default is not set aside and stayed.  

26.	Under Order 18 Rule 12 (1), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless that party traverses it in his pleading, or a joinder of issue under Rule 13 operates as a denial of it. 

27.	Allegations that a party has suffered damage as well as allegations as to the amount of damages are deemed to be traversed unless specifically admitted.  (Order 18 Rule 12 (4))

28.	In this case, the Defendant has not traversed, either in the affidavit in support, or in the draft defence, the fact that the Plaintiff had suffered damage.  Nor did it need to, in light of Order 18 Rule 12 (4) above. 

29.	What it did need to traverse however, are the Plaintiff’s allegations of negligence for its failure to provide a proper system of work, adequate supervision, exposing the Plaintiff to a risk of damage or injury of which it ought to have known, and instructing the Plaintiff to lift the seven bags of cement at a height, knowing that it was exposing the Plaintiff to work that was unsafe.  

30.	To these allegations, the Defendant deposes it had a safe system of work in place with the issuance of safety gear to its workers and the holding of toolbox meetings where safety procedures and associated hazards of each job were discussed, and workers advised of the safety control measures required of them.  The deponent also says that the Company employed safety officers for its projects to ensure the safety of its workers and to promote adherence of workers to accepted safety standards and procedures while conducting their work.   

31.	The Plaintiff’s allegations of the lack of supervision, the instructions for him to lift the 7 bags of cement knowing that the Plaintiff was thereby being exposed to unsafe work, are not traversed at all, with the result that they are deemed to be admitted under Order 18 Rule 12 (1).   

32.	Having considered the affidavit material before the Court, the draft defence and counsel’s submissions, I am of the view that the Defendant has not met the threshold stated in Saudi Eagle (supra) and as adopted in this jurisdiction by the Court of Appeal in Wearsmartand Tabu (supra).  Though the Defendant has annexed at LPJ12 a copy of what is said to be a standard personal protection and safety gear issue to the Company’s workers, there is nothing to say that the Plaintiff had been issued with the said gear.  His name does not even appear as one of the workers who had received such gear from the Company.

33.	In addition, while the Defendant has annexed a copy of a toolbox meeting safety instruction outline for the workers, and says it hired safety officers to ensure the safety of its workers, it fails to say whether the Plaintiff had attended the toolbox meetings, had received a copy of the instruction outline, or even that any safety officer was at the site at the time of the accident.  

34.	In Tabu (supra), the Fiji Court of Appeal stated: 

Where a defendant is alleging that it has a good defence and is seeking to set aside a default judgment, it behoves that party to spell out the defence with sufficient particularity.

35.	I am not satisfied that the Defendant has spelt out with sufficient particularity its defence in this matter, such as to warrant the setting aside of the default judgment against it.  Neither has it been shown to the Court’s satisfaction that the defence has a “real prospect of success” and “carry some degree of conviction.” (Alpine Bulk Transport Co. Inc.; Wearsmart, supra)

36.	Finally, the Defendant says that the Plaintiff could have been compensated under the Workmen’s Compensation Act (the Act), for which payment had been made by the Defendant’s insurance agent to the Ministry.  In as far as workmen’s compensation is concerned, the Court with original jurisdiction is the Magistrate’s Court.  In any event, section 25 of the Workmen’s Compensation Act provides that nothing in that Act shall prevent the institution of proceedings to recover damages against the employer in a civil court, provided that no judgment has been obtained in proceedings under the Act.  Similarly, a judgment under the Act operates as a bar to proceedings in respect of the same injury independently of the Act.  

37.	In this case, no judgment has been obtained in proceedings under the Act, such that it was open to the Plaintiff to exercise his right to institute and bring these proceedings in a civil court.  

38.	Orders:
1.	The summons to set aside default judgment is dismissed.
2.	The Defendant is to pay the Plaintiff’s costs, summarily assessed at $850.

S.F. Bull
Acting Master